Idaho Conservation League v. Mumma

• Decision Date: 06 May 1992
• Docket Number: No. 90-35796,90-35796
• Parties: 22 Envtl. L. Rep. 20,569 IDAHO CONSERVATION LEAGUE, Idaho Wildlife Federation, Idaho Environmental Council, Idaho Sportsmen's Coalition, Inland Empire Public Lands Council, and the Sierra Club, Plaintiffs-Appellants, v. John MUMMA, F. Dale Robertson, and the United States Forest Service, Defendants-Appellees, Intermountain Forest Industry Association, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1508

956 F.2d 1508

22 Envtl. L. Rep. 20,569

IDAHO CONSERVATION LEAGUE, Idaho Wildlife Federation, Idaho

Environmental Council, Idaho Sportsmen's

Coalition, Inland Empire Public Lands

Council, and the Sierra Club, Plaintiffs-Appellants, v. John MUMMA, F. Dale Robertson, and the United States Forest

Service, Defendants-Appellees,

Intermountain Forest Industry Association,

Defendant-Intervenor-Appellee.

No. 90-35796.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 1991.

Decided Feb. 26, 1992.

As Amended May 6, 1992.

Victor M. Sher, and Todd D. True, Sierra Club Legal Defense Fund, Seattle, Washington, for plaintiffs-appellants.

Alan Charles Raul, Gen. Counsel, Raymond Fullerton, Asst. Gen. Counsel, Michael L. Gippert, Deputy Asst. Gen. Counsel, Vincent L. DeWitte and Jeffrey A. Knishkowy, Office of the Gen. Counsel, U.S. Dept. of Agriculture, Washington, D.C., for defendants-appellees.

Steven P. Quarles and Thomas R. Lundquist, Crowell & Moring, Washington, D.C., for defendant-intervenor-appellee.

Appeal from the United States District Court for the District of Montana.

Before D.W. NELSON, NOONAN and T.G. NELSON, Circuit Judges.

D.W. NELSON, Circuit Judge:

At stake in this litigation is an area comprising 858,000 roadless acres situated in 47 different roadless zones within the Idaho Panhandle Forest ("IPNF"). Plaintiffs, a coalition of six conservationist/environmental organizations, ¹ challenged the Forest Service's decision to recommend against wilderness designation 43 of these 47 roadless areas, claiming that it violated the National Forest Management Act, 16 U.S.C. § 1600 et seq. ("NFMA"), and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA").

On August 8, 1990, the district court granted summary judgment for the defendants, the Forest Service and defendant-intervenor Intermountain Forest Industry Association ("IFIA"). The court held, first, that ICL lacked standing to sue. In the alternative, it ruled that plaintiffs were barred from litigating claims they had failed to raise at the administrative level and that, on the merits, the Forest Service had adequately complied with all relevant

                regulations.   The ICL appealed.   We find that the district court erred in finding that ICL did not have standing, but affirm the district court's decision on the merits
                

BACKGROUND

1. Statutes and Regulations

At the heart of this controversy is the Forest Service's plan for managing the more than 2 million acres of the IPNF. Pursuant to a number of interconnected congressional directives, the Secretary of Agriculture is entrusted with the responsibility of administering vast expanses of national forests. See State of California v. Block, 690 F.2d 753, 757 (9th Cir.1982). The central statute in this case is the NFMA, which directs the Secretary to "develop, maintain, and, as appropriate, revise land and resource management plans ["LRMP"] for units of the National Forest System." 16 U.S.C. § 1604(a). An LRMP must provide the overall management direction and general guidelines for a period of up to 15 years. 16 U.S.C. § 1604(b).

But the Secretary does not have to manage land alone. He must also juggle the myriad concurrent statutes or regulations that the NFMA, by direct or indirect reference, incorporates. First, in developing an LRMP, the Secretary is required to "provide for multiple use and sustained yield of the products and services obtained therefrom in accordance with the Multiple-Use Sustained Yield Act ["MUSY"] ... and, in particular, include coordination of outdoor recreation, range timber, watershed, wildlife and fish, and wilderness ..." 16 U.S.C. § 1604(e). ²

This reference to "wilderness" triggers the applicability of the Wilderness Act, aimed at protecting areas "where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain." 16 U.S.C. § 1131(c). Although the Act vests Congress with exclusive authority to designate wilderness areas, the Secretary is directed to recommend "primitive" areas to Congress for such designation. ³ The Forest Service is required to protect the character of areas it recommends for wilderness designation until further redesignation, as it may only approve land use that is consistent with the land management plan. 16 U.S.C. § 1133(b).

Moreover, the land management plans must be prepared in compliance with NEPA. 16 U.S.C. § 1604(g)(1). Accordingly, the regulations promulgated by the Secretary provide that an LRMP must be accompanied by appropriate draft and final Environmental Impact Statements ("EIS"). 36 C.F.R. § 219.10(b). ⁴ NEPA also requires a "detailed statement ... on ... alternatives to the proposed action ..." 42 U.S.C. 4332(2)(C).

Finally, pursuant to 16 U.S.C. § 1604(g), the promulgated regulations describe in detail the process for developing a land management plan. Schematically, this involves a two-stage approach. During the initial stage, a team under the direction of the Forest Supervisor develops a proposed LRMP together with a draft and final EIS. 36 C.F.R. § 219.10(a),(b). In compliance with NEPA, the plan must result from the formulation and evaluation of a broad range of alternative management scenarios with the aim of "identifying the alternative that comes nearest to maximizing net public benefits." 36 C.F.R. § 219.12(f). ⁵ After Direct implementation of the LRMP occurs at a second stage, when individual site-specific projects are proposed and assessed. The Forest Supervisor must ensure that all projects are consistent with the plan. 16 U.S.C. § 1604(i); 36 C.F.R. § 219.11(e). Further NEPA analysis is conducted to evaluate the effects of the specific project and contemplate a range of alternative actions, including a "no action" alternative. 40 C.F.R. §§ 1502.14(d), 1508.9(b). See generally Citizens for Environmental Quality v. United States, 731 F.Supp. 970, 977 (D.C.Colo.1989).

                review, the Regional Forester either approves or disapproves the proposal.  36 C.F.R. § 219.10(c).   If approved, the plan and final EIS are supplemented by the Regional Forester's record of decision ("ROD").   Id
                

The draft forest plan and EIS relating to the IPNF, which included 12 alternative proposals, were released on April 19, 1985. After a period of public comment, the final plan and associated EIS were issued in August 1987. The plan included a 13th alternative. The Regional Forester signed the Record of Decision on September 17, 1987, selecting Alternative 13 from the EIS as the official Forest Plan. On October 20, 1987, plaintiffs challenged through administrative channels countless aspects of the Regional Forester's ROD regarding the IPNF and its accompanying EIS. ⁶ For the sake of expediency, the Chief of the Forest Service ("Chief") severed the roadless area issue from the remainder of ICL's appeal, leaving the surviving questions for another day. ⁷ Accordingly, that question alone is now before this court.

2. The Roadless Area Issue

Under the adopted plan, parts of four of the IPNF's 47 inventoried roadless areas are to be recommended for wilderness designation, amounting roughly to 18% of the current roadless acreage. ⁸ In its administrative appeal, the ICL alleged that, in its attempt to expand timber harvesting, the Forest Service's plan sacrificed vast expanses of roadless land without considering all available alternatives. In particular, it claimed that timber production goals could be met while recommending all of the roadless area for wilderness.

Moreover, given the cost of harvesting timber in currently roadless areas, the ICL claimed that timber sales would yield no profit. The failure to address the possibility of increasing timber harvests through intensive management of already developed areas and to disclose the real value of timber from roadless areas were challenged as violations both of the NFMA and of NEPA.

On August 15, 1988, the Chief upheld the Regional Forester's decision, finding in particular that the EIS's treatment of the roadless areas was adequate for NEPA purposes. In reaching this decision, he relied heavily on the fact that the decisions at stake were not irreversible or irrevocable, and therefore did not necessitate the type of site-specific analysis that, it appeared, would be necessary to satisfy the ICL.

Thereafter, the appellants filed a complaint in the district court for the District of Montana. Their claims were threefold: First, the Service violated the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, and NFMA by failing to provide a rational explanation for its decision to recommend for wilderness designation only 4 of the 47 roadless areas; second, the absence of a rational explanation for its decision to develop portions of the remaining 43 areas also violated these statutes; third, the Service violated NEPA by failing to examine the plan's full environmental effects and to explore all reasonable alternatives in the EIS. Accordingly, plaintiffs sought an order directing the Service to conduct a comprehensive environmental impact analysis and vacating the ROD insofar as the roadless areas were concerned, and an injunction against all bidding or awarding of development contracts on the 43 disputed areas until such requirements be met.

The district court granted summary judgment to the defendants on three alternative grounds. The ICL, it ruled, could not bring this suit to begin with because it lacked standing. In addition, because the ICL had not raised its first two claims in the administrative proceeding, it was barred from raising them before the district court. ⁹ Finally, the district court ruled that the EIS was adequate insofar as all relevant environmental and economic aspects were duly considered, roadless areas individually described, and alternatives properly assessed. The dispute between the ICL and the Service, it opined, merely was a disagreement between experts that ...